Under the unamended NEC3 ECC Option B, does contractor design become part of the Works Information, Contractors Works Information or neither, once it has been accepted by the PM?
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Great question! NEC3 ECC provides a definition for Works Info in clause 11.2(19) which encompasses both the information provided by the Employer and Contractor but its has to pass two tests/conditions to fall into the definition. There no specific definition for Contractor’s works info, but there’s reference to info provide the Contractor for his design in the Contract Data and 60.1(1) which can be incorporated into the Works Info (but not always the case systematically). I’d suggest you read these clauses, as it may have a bearing on your actions.
Clause 11.2(19) states
"Works Information is information which either:
(condition 1)
- specifies and describes the works or
- states any constraints on how the Contractor Provides the Works
and is either
(condition 2)
- in the documents which the Contract Data states it is in or
- in an instruction given in accordance with this contract."
So it will depend on the content of the submission of the Contractor makes and whether the PM gives an instruction or whether its referenced in the entries in the Contract Data.
Generally anything that the Contractor submits that "describes the works " and they are either reference in the Contract Data or instructed would fall with this definition as “Works Info” and would also fall within the “Works Info” provided by the Contractor.
However, the definition of Works Info in clause 11.2(19) has two conditions it has to meet, so just because it “specifies and describes the works” does not make it Works Info.
It needs to also be either “in the documents which the Contract Data states it is in or in an instruction given in accordance with this contract.”.
So for example a Contractor’s methodology statement submitted and accepted but not listed in the contract data, would be neither Works Info and the Contractor’s Works Info, as it does not meet either of the second conditions. There potentially covers lots of info like this that falls outside the scope of Works Info taht is shared and accepted but not instructed.
The same information could however also be submitted and accepted and the PM can also instruct this methodology to be followed going forward and ist therefore incorporated into the Works Info and this is a change to the Works Info and would become part of the Works Info because the PM has instructed its followed. Once the PM instructs its followed (as opposed to just accepted) or that its incorporated into the Works Info, the Contractor obliged to “provide the works” in accordance with the Works Info, so can no longer change it’s methodology. Its also a CE, but there can be something that are accepted like methodology which the Contractor still has some discretion to change again at a later date. So they might describe the works or how they are doing but not be an constraint or instructed.
Regarding instructions, there isn’t a definition for this as such hence why i say not every acceptance will be an instruction but for the instructions to be in accordance with the contract it needs to be in writing (13.1) and communicated to the correct address (13.2).
Clause 14.1 also states that the acceptance does not change the liabilities of the parties.
Very comprehensive Chris, thank you.